Armstrong 1: Correspondence

RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C.

ATTORNEYS AT LAW
7-40 BROADWAY AT ASTOR PLACE
NEW YORK, N.Y. 10003-9518

LEONARD B. BOUDIN
MICHAEL B. STANDARD
MICHAEL KRINSKY
ERIC M. LI EBERMAN
ELLEN J. WINNER
EDWARD COPELAND
ELIZABETH ST. CLAIR
TERRY GROSS

TELEPHONE (212) 254-1 III

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HAYWOOD BURNS
LEONARD I. WEINGLASS
JOHN KENNETH ZWERLING
JUDITH LEVIN

KATHERINE VAN WEZEL STONE

BETH M. MARGOLIS
NICHOLAS E. POSER
DAVID B. GOLDSTEIN
DAVID GOLOVE*

HILLARY RICHARD
LINDA S. BOSNIAK

’ADMITTED IN CALIFORNIA ONLY

March 9, 1990

VIA FEDERAL EXPRESS

Mr. Frank Stapleton
Court of Appeal for the
State of California
Second District - Division Four
3580 Wilshire Blvd.

Los Angeles, California 90010

Re: Church of Scientology of California and

Mary Sue Hubbard, Appellants, v. Gerald
Armstrong, Defendant. Bent Corydon, Appellee.
Civ. No. B 038975

Dear Mr. Stapleton:

This letter is in response to the letter sent to the
court by Toby L. Plevin, attorney for Bent Corydon, dated March
6, 1990.

Initially, I should note for the record that I had no
notice of your communication with Ms. Plevin until I received
her letter. Upon receiving her letter, I telephoned you
yesterday to inquire as to the nature of the communication and
as to why you had communicated with only one party to this
appeal. You explained that you merely intended to inquire as to
the position of Corydon with respect to the petition by Gerald
Armstrong for leave to file a brief. You further acknowledged
that such communication also should have been made to myself as
counsel for appellants. I pointed out to you that, on behalf of
the appellants, I independently had filed a response opposing
Mr. Armstrong's "petition", which you indicated you already had
received. I further noted, however, that Ms. Plevin's letter
went far beyond a statement of position, and undertook a
general, extra-record attack on the appellants and their
counsel. I stated to you that I felt that it was necessary for
me to respond to Ms. Plevin's letter, since I submit that it

Mr. Frank Stapleton
Court of Appeal for the
State of California
March 9, 1990
Page 2

contains numerous misstatements and distortions. You stated
that I should respond in a timely manner. This letter is that
response.

Ms. Plevin's letter of March 6 contains the following
false or distorted statements:

1. On page 2, in the top runover paragraph, Ms.

Plevin states that ''Judge Breckenridge was not informed that, as
part of the settlement agreement, Armstrong was filing no
opposition to the appeal" in the underlying case between
Armstrong and the Church of Scientology of California. In fact,
as Ms. Plevin is well aware, at the time of the settlement
agreement and of the hearing before Judge Breckenridge, the
appeal in question had been fully briefed and argued and was
awaiting decision by Division Three of this court. The parties
to that appeal contemplated that Division Three would render a
decision on the merits of that appeal .—* It is true that in the
settlement agreement, Mr. Armstrong waived the right to take any
further appeals in the event Division Three reversed the
decision of the Superior Court. Mr. Armstrong further agreed
not to file any new briefs if the Church were to take an appeal
to the California Supreme Court. In such an event, of course,
Mr. Armstrong's previously filed briefs in Division Three could
have been considered by the California Supreme Court. See
California Rules on Appeal, Rule 29.3.

—' As it happened, Division Three dismissed the Church's appeal
for lack of appellate jurisdiction, an issue which had neither
been briefed nor raised on oral argument, thereby requiring the
appellants to renotice and reperfect their appeal. There then
was a delay of over two years until Division Three established a
new briefing schedule. The appellants filed their brief on this
new appeal in Division Three on December 18, 1989. Both before
and after filing their latest brief, appellants' counsel
communicated by telephone and by letter with Michael Tabb, a
partner of Michael Flynn and counsel of record for Mr.

Armstrong. Counsel for appellants and Mr. Tabb agreed that Mr.
Armstrong could and would respond to the appellants new brief in
Division Three, most likely by moving to incorporate relevant
sections of Mr. Armstrong's earlier brief. Mr. Tabb never did
so because he apparently was dismissed by Mr. Armstrong as
counsel.

Mr. Frank Stapleton
Court of Appeal for the
State of California
March 9, 1990
Page 3

2. Also on page 2, in the top runover paragraph, Ms.
Plevin suggests that "appellants never intended to retry the
case even if they prevailed on appeal". In fact, in appellants
brief on the pending appeal in Division Three ( see footnote 1,
supra ), they readily disclosed that Mr. Armstrong's actual
potential liability had been limited to nominal damages by a
series of indemnity agreements. Appellants argued, with ample
citation, that they are entitled to pursue claims for nominal
damages for invasion of privacy and conversion. They further
argued that if they should prevail on appeal, there indeed would
be no need for a new trial; all that would be left to be done
would be for the trial court to enter judgment for nominal
damages. These facts, fully set forth in appellants brief in
the case before Division Three, completely belie the
irresponsible assertion by Ms. Plevin of a "collusive" appeal.

3. On page 2 of her letter, Ms. Plevin states that
Church's counsel misrepresented to Judge Breckenridge "that
Armstrong had agreed to a stipulated sealing order". We find
this statement of Ms. Plevin particularly curious, since she
herself attached as Exhibit D to her letter the very stipulated
sealing order referred to, which clearly was signed by Mr.
Armstrong's counsel on his behalf.

4. On the top of page 3 of her letter, Ms. Plevin
argues that Church's counsel misrepresented to Judge
Breckenridge that "the settlement agreement had been filed with
the court". No such representation was made. Rather, the
stipulated sealing order did contain a provision that the
settlement agreement would be filed with the court.

Subsequently, the parties to the settlement agreed not to file
the settlement agreement, a procedure to which Judge
Breckenridge apparently agreed.

Ms. Plevin fails to inform this court that in the
proceedings below before Judge Geernaert, Ms. Plevin made a
motion to compel the parties to file the settlement agreement,
which motion was denied by Judge Geernaert. Ms. Plevin took no
appeal from that order. Her belated attempt to inject it into
the present appeal is improper.

5. In the first full paragraph on page 3, Ms. Plevin
again suggests that Armstrong was precluded from opposing the
Church's appeal in his underlying case. We have already pointed
out how and why this assertion is false.

Mr. Frank Stapleton
Court of Appeal for the
State of California
March 9, 1990
Page 4

6. In the second full paragraph on page 3, Ms. Plevin
falsely states that "Armstrong was required to avoid service of
process". In support of her claim Ms. Plevin misquotes
paragraph 7H of the settlement agreement. The actual language
of the agreement stated that Armstrong "shall not make himself
amenable to service of any such subpoena in a manner which
invalidates the intent of this provision." This clause was
intended merely to prevent the possibility of a collusive
attempt by Armstrong to avoid the provisions of the settlement
agreement by going out of his way to make himself amenable to
service. The clause in no way interferes with service in the
normal course.

7. At the top of page 4, Ms. Plevin falsely states
that Mr. Flynn agreed to withdraw from representation of Mr.
Armstrong in the Church's appeal in the underlying Armstrong
case. In fact, Mr. Flynn and his partner, Mr. Tabb, continued
to represent Mr. Armstrong in that appeal until recently, when
they apparently were dismissed by Mr. Armstrong. Mr. Tabb
personally told me on the telephone that he was prepared to file
a brief in that case on behalf of Mr. Armstrong, or a motion
incorporating portions of Mr. Armstrong's prior brief.

8. Also on the top of page 4, Ms. Plevin states that
Mr. Flynn was forced to withdraw from representation of Mr.
Corydon as a result of the settlement agreement. In fact, as
Ms. Plevin well knows, the Superior Court of Riverside County
issued an order refusing to permit Mr. Flynn to represent Mr.
Corydon in the very California proceeding for which Mr. Corydon
sought Mr. Flynn's services. This order came one and one-half
years before the settlement agreement was entered into.

Ms. Plevin's letter contains a number of additional
quasi-factual statements based on double or triple hearsay,
which are totally irrelevant to the matters pending before this
court and about which the undersigned lacks direct personal
knowledge. Unlike Ms. Plevin, I will not further burden this
court with uncorroborated statements and opinions about such
matters.

I respectfully urge that the court strike and/or
disregard Ms. Plevin's letter. It is an entirely gratuitous,
unprofessional, generally false piece of irrelevancy, intended

Mr. Frank Stapleton
Court of Appeal for the
State of California
March 9, 1990
Page 5

to divert the court from the issues before it and to create
prejudice against the appellants.

Very truly yours.

Eric M. Lieberman

cc: Mr. Gerald Armstrong

Toby L. Plevin, Esq.

Paul Morantz, Esq.

Michael J. Flynn, Esq.

Julia Dragojevic, Esq.

Clerk of the Superior Court

of California